Abstract: This paper investigates the evolution of the Chinese land regime in the past three decades and focus on one question: why has the land use reform succeeded in the urban area, but not in the rural area? Through asking this question, it presents a holistic view of Chinese land reform, rather than the conventional “rural land rights conflict” picture. This paper argues that the so-called rural land problem is the consequence of China’s partial land use reform. In 1988, the Chinese central government chose to conduct land use reform sequentially: first urban and then rural. It was a pragmatic move because it would provoke much less resistance. It also made local governments in China the biggest beneficiary and supporter of the partial reform. However, a beneficiary of partial reform does not necessarily support further reform because of the excessive rents available between the market of urban real estate and the government-controlled system of rural land development and transfer. On the other hand, Chinese farmers and other relevant groups have no voice or power in the political process of the reform, which makes it difficult for the central government to achieve an agenda that balances the interests of all relevant parties. Nevertheless, Chinese farmers have challenged the existing system by forming a huge small-property market to claim their interests in rural land, which counteracts the goals of the central and local governments and has led to adaptive policy changes. This case study of Chinese land reform provides a richer account of the political process of evolution of property rights. Click here to download the full paper.

Since the city hosted its first ladies’ night in 1994 - a promotional event where women pay less than men for drinks or entry charges - it’s become an iconic fixture of Hong Kong nightlife. But the practise is now under fire following a recent court ruling that such events were discriminatory, leading several bars to halt their ladies’ nights in response.

“It makes sense that people think it’s unfair ... but it’s a bit extreme,” said Tsui, 21, sipping from a plastic cup while out at Lan Kwai Fong on Thursday, the traditional night of the week for ladies’ night. “It’s a tradition, there are ladies’ nights in other places. It’s a tourist attraction.”

Rooted in controversy, the first ladies’ night in Hong Kong was hosted by Westworld, a club in Wan Chai that has since closed, as a way to draw customers into the lacklustre weekday club scene.

Although there were concerns that the practise would clash with anti-discrimination legislation in 1997, ladies’ night became highly successful, and quickly spread throughout the city.

Originally a western concept, ladies’ nights are banned in the United Kingdom, as well as certain parts of the United States...

By using women to attract male customers, ladies night essentially commodifies women and uses them as tools to sell products,” said Puja Kapai, an associate professor of law at the University of Hong Kong who specialises in human rights.

It also perpetuates stereotypes like women being incapable of paying for drinks, or reinforces problematic gender norms such as how it should be men who buy drinks on a night out, said Marco Wan, associate professor law at HKU.

In a press release on Thursday, the EOC said that the ruling was intended to “heighten our community’s awareness to unlawful treatments on the grounds of sex or gender” and “rightfully assist a complainant.” It also suggested that the case would be used to gain clarity on the boundaries of business promotions to special groups... Click here to read the full article.

Abstract: The article first explains why the anti-money laundering (AML) regime in Hong Kong concerns cross-discipline and cross-jurisdiction issues. The author uses the recent money laundering scandal involving The Fédération Internationale de Football Association (FIFA) members as an opportunity to assess the Financial Action Task Force (FATF) Recommendations on politically exposed persons (PEPs). The FIFA scandal involved financial institutions acting as intermediaries in facilitating the PEPs’ money laundering activities. Given financial institutions’ knowing or unknowing involvement in the scandal, there appears to be significant gaps in financial institutions’ ‘know your clients’ (KYC) due diligence process. The article warns that regulation on this issue is fragmented and inconsistent, as evidenced by how the risk-based approach recommended by the FATF is not observed in every jurisdiction. The article then examines the anti-money laundering regime in Hong Kong, one of the world’s main financial centres, by examining its various legislation and comparing them with the FATF Recommendations. Lastly, the article suggests improvements to Hong Kong’s AML legislation and the FATF Recommendations which are essentially a set of global AML standards. The article then explores ways to better implement the FATF Recommendations in jurisdictions that have adopted them, especially those which host the world’s financial centres. Click here to download the full article.

Sunday, April 24, 2016

"Equity crowdfunding: caveat emptor?"Syren JohnstoneInternational Financial Law Review
May 2016, pp. 43-45A recent paper by the Hong Kong Financial Services Development Council (FSDC Paper No 21) suggests legislative changes are not needed to establish a robust equity crowdfunding (ECF) market in the city-state. Titled Introducing a Regulatory Framework for Equity Crowdfunding in Hong Kong, it states that regulatory oversight is sufficient for the practice to ‘operate safely and efficiently’ while allowing it ‘to develop in an environment that provides a level of protection and supervision appropriate to the risk presented to investors’.

The suggested approach, arrived at after comparison with the US, UK, China and Singapore, comprises four key elements. ECF platforms would be brought within an existing category of activity regulated by the Securities and Futures Ordinance (SFO) to provide a basis for regulatory oversight of the platform. Offering securities to the public would be sub- ject to additional exemptions, tailored to ECF, from Hong Kong’s prospec- tus law being granted by the Securities and Futures Commission (SFC) under its existing powers. Issuers would be subjected to disclosure require- ments either by being incorporated in Hong Kong, and so subject to the requirements of the new Companies Ordinance (CO), or be required to offer equivalent disclosure. And the extent to which retail investors may participate in ECF offerings would be determined by primarily financial measures.

Within this broad framework, a number of difficult implementation questions fall to the SFC to determine in view of its overarching regulatory objectives... Click here to read the full article.

Background on the prize: Every year, there are 10 research outputs in the area of private international law/conflict of laws in China and Greater China selected to be honoured by the Society as Best Research Output Prizes. The Prize Competition is organised by China Society of Private International Law Secretariat, and referees are leading experts in the field in China. Among the 10 outputs honoured, there are two honoured as “First Class”, three honoured as “Second Class”, and five honoured as “Third Class”. For the “First Class” Prizes, they are sub-divided as “Authored Book” (1 Prize) and “Journal Article” (1 Prize). For more information on the award, click here (in Chinese).

Thursday, April 21, 2016

Description: In the past century, Asian nations have experienced a wave of democratisation as countries in the region have gained independence or transitioned from authoritarian military rule towards more participatory politics. At the same time, there has been an expansion of judicial power in Asia, whereby new courts or empowered old ones emerge as independent constraints on governmental authority.

This is the first book to assess the judicial review of elections in Asia. It provides important insights into how Asian courts can strategically engage with the political actors in their jurisdictions and contribute to a country’s democratic discourse. Each chapter in the book sheds light on the judicial review of elections and the electoral process in a specific Asian jurisdiction, including Common Law Asia, namely Hong Kong, India, Malaysia, and Singapore, as well as jurisdictions in Civil Law Asia, namely Indonesia, Japan, the Republic of Korea, Taiwan, and Thailand. It fills a gap in the literature by addressing a central challenge to democratic governance, namely the problem of partisan self-dealing in the electoral processes.

By exploring the constantly evolving role of the courts in addressing pivotal constitutional questions, this book will be of interest to students and scholars of Asian Law, Governance and Politics.

In the past century, as the winds of political change swept across the globe, Asian nations too experienced a wave of democratisation as countries in the region gained independence or transitioned from authoritarian military rule towards more participatory politics. In tandem with this democratisation trend, we may also witness a concomitant expansion of judicial power in Asia, whereby new courts or empowered old ones emerge as independent constraints on governmental authority. The rise of the courts, and the accompanying ‘judicialisation of politics’, is as much an Asian phenomenon, as it is a prevalent trend in the West.

There is now a rich corpus of literature on how Asian courts have participated in and even reshaped the human rights discourse in their respective jurisdictions. However, little academic literature has examined how Asian courts have responded to deficiencies in the electoral processes and the concomitant problem of partisan self-dealing. Specifically, partisan self-dealing occurs when the political actors devise electoral rules that govern voting, political parties, electoral boundaries, apportionment, the administration of elections, and campaign finance that are designed to entrench themselves in power. The purpose of this book is to redress this gap in the scholarship by exploring how courts in Asia have addressed this central challenge to democratic governance.

The chapters in this volume stemmed from a symposium held at the University of Hong Kong in July 2015. Each of the ten chapters profiled in Part I and Part II of this book sheds light on the judicial review of elections and the elect- oral process in a specific Asian jurisdiction. Part I examines the common law jurisdictions of Hong Kong, India, Malaysia, Pakistan, and Singapore. Part II explores the civil law jurisdictions of Indonesia, Japan, South Korea, Taiwan, and Thailand. To allow readers to draw insights from judicial practices in non- Asian jurisdictions, Part III includes, as a comparative foil, a brief account of the state of play in Australia, Canada, and South Africa...

The judicial review of elections in Hong Kong is a relatively recent phenomenon. It occurs in a unique milieu of entrenched political rights and political institutions that are on an evolving course to becoming fully democratic. In this milieu, a contradiction has become apparent; while Hong Kong courts are prepared to strike down unreasonable restrictions on voting and candidacy, sometimes with significant consequences, they have done very little to impact the most unfair and illegitimate aspects of Hong Kong’s electoral systems. These aspects include the functional constituencies that have returned at least half of all legislators since 1985, the 1200 member election committee that nominates and elects the chief executive, and the practice of corporate voting used in both the election committee and functional constituency elections.

From a critical examination of the relevant judicial review case law, this chapter explains how the contradiction came about and what sustains it. It then reflects on how the contradiction might be resolved going forwards, particularly after the 2015 failed attempt to introduce universal suffrage of the chief executive. Two opposite paths of resolution are discussed. One sees courts applying political rights even more robustly to chip away at those illegitimate aspects mentioned above. The other sees courts becoming even more deferential, declining judicial review of electoral laws on the ground that they are matters best left for political negotiations and legislative review. The chapter notes that the impact of the political reform exercise of 2013 to 2015, which was over-shadowed by a more assertive role played by the Chinese central government, may influence a more deferential approach in the future. However, arguments are made for why courts should resist taking such a path...

Vellama d/o Marie Muthu v. Attorney General remains the first and the only occasion where the Singapore judiciary had the opportunity to review a challenge to the local electoral process. Specifically, the Singapore Court of Appeal held that the Prime Minister had a constitutional duty under Article 492 of the Constitution to call for a by-election when a casual vacancy arose. But, on the facts, the Court of Appeal also held that the applicant, a resident voter of the Hougang Single Member Constituency (SMC), had no standing to seek declaratory relief from the courts after a by-election to fill the vacancy at Hougang SMC had been carried out, and she thus incurred no ‘special damage’ after that to seek judicial relief.

The facts and the procedural history of the case may be briefly stated. Following the vacancy of the Parliamentary Hougang SMC on 14 February 2012, a resident voter of the said SMC instituted judicial review proceedings for a mandatory order requiring the Prime Minister to advise the President to issue a writ of election for Hougang SMC and a declaration on the proper construction on Article 49 of the Constitution. On 2 March 2012, the Prime Minister announced that he intended to call for a by-election in Hougang SMC but had not decided on a time. On 3 April 2012, the High Court granted the applicant leave for a judicial review hearing. The by-election was subsequently held on 26 May 2012. The High Court dismissed the applicant’s case on 1 August 2012 and the Court of Appeal dismissed her appeal on 5 July 2013.

In this chapter, I shall examine three core issues relating to the judicial review of the electoral process in Singapore that was raised in Vellama: (1) the locus standi of the Applicant; (2) the constitutional duty of Prime Minster to call for a by-election when a vacancy arose; and (3) the determination of cost orders for such public interest litigations...

Wednesday, April 20, 2016

In recent months, our city has seen the birth of several political organizations led by young people. Their political pledges would probably have been regarded as unimaginable 20 years ago — namely, self-determination or independence for Hong Kong. Even though these organizations are setting their sights on the period after 2047 and are seeking neither immediate self-determination nor independence, in the eyes of Beijing they have already crossed the line.

The ideas of self-determination and independence are fundamentally different from each other. Self-determination often refers to a situation in which a particular group of people who share the same cultural or ethnic identity seek their constitutional right to determine their own governmental affairs and to make their own decisions on particular issues. What they want is autonomy rather than becoming an independent state, as opposed to those who are calling for full independence.

Self-determination is often the result of a referendum, whereas independence may be achieved either by referendum or revolution. As far as Hong Kong is concerned, people who are in favor of self-determination might not necessarily agree with the pro-independence cause. Some of them might be against the idea of secession from China, especially more moderate voters, such as many in the middle class.

Still seeing Hong Kong as part of the People’s Republic of China, they are dismayed at Beijing’s continued interference in Hong Kong’s affairs and its violation of the principle of “one country, two systems”, and so they are seeking a way to defend our autonomy, promised under the Basic Law, and trying to put things right. By contrast, pro-independence organizations are calling for Hong Kong’s secession from the mainland and becoming an independent city state like Singapore.

Here I don’t intend to take a stand on either self-determination or independence, nor am I going to analyze the feasibility of these options. What I want to do is to find out the root cause for the sudden rise of the pro-self-determination and the pro-independence sentiment in Hong Kong.

In fact, the rapid rise of such sentiment has its roots in the so-called “831 resolution” announced by the Standing Committee of the National People’s Congress on August 31, 2014, regarding the arrangements for the 2017 election for Hong Kong’s chief executive, and the failure of the subsequent Occupy Central movement... Click here to read the full article.

Tuesday, April 19, 2016

Congratulations to our nine colleagues who recently obtained grants from the HKU Seed Funding for Basic Research. A total of more than $0.5 million was awarded in funding. The project topics range from crowd-funding, China's anti-monopoly law to the law and policy of creative industries and innovation in Hong Kong. The details of the awarded projects are as follows (in no particular order):

Sunday, April 17, 2016

Abstract: International cooperation has been successfully conducted in a wide range of areas in the space field. Over the past years, many bilateral and multilateral agreements have been concluded, providing solid legal basis for space cooperation. This article examines the important role of these agreements in the process of international space cooperation and put forward suggestions on how to further facilitate the conclusion of international agreements so that international space cooperation can be carried out more effectively. The article concludes that international agreements are important tools to realize international space cooperation and that we will need to further study possible means to promote international space cooperation in wider scope through the conclusion of international agreements. Contact the author for a copy.

Abstract: In AIB Group (UK) Plc v Mark Redler & Co Solicitors, a unanimous UK Supreme Court has affirmed the controversial House of Lords decision in Target Holdings Ltd v Redferns. Where there is a breach of trust, an order to reconstitute the trust fund through the traditional accounting mechanism in equity is to be moderated by an express doctrine of causation of loss. The court’s decision to resolve the measure of liability of defaulting trustees in breach of trust through the doctrine of causation has significant impact on the perceived distinction between common law and equitable claims, as well as between different types of equitable claims. Contact the author for a copy.

Beijing had legal grounds to ask Kenyan authorities to deport Taiwanese fraud suspects to the mainland, legal experts say, but it could have avoided controversy over its handling of the affair by showing more respect and better communication with Taipei.

Forty-five Taiwanese, together with 32 mainlanders in Kenya, were sent to the mainland as authorities investigate their alleged ­involvement in phone scams targeting victims on the mainland.

The deportations attracted criticism, though legal ­experts said Beijing’s handling of the case was supported by international laws...“Kenya and China, both of which are parties of the Palermo Convention, have the obligation to cooperate in [transnational] organised crime,” said Simon Young, a law professor at the University of Hong Kong. “On the other hand, there is no extradition agreement between Taiwan and Kenya.” The Palermo accord was adopted by the United Nations in 2000 with the aim of promoting cross-border cooperation in tackling organised crime... Click here to read the full article.

Taiwan authorities expressed hope over establishing a formal crime-fighting mechanism with Hong Kong following the recent transfer of three suspects in the body-in-cement murder case from the island to the city.

Legal scholars in Hong Kong, however, had differing views on how likely such a system could be implemented, while a well-placed Taiwan official told the Post that Hong Kong’s lukewarm response to the idea thus far was a far cry from the close relations the respective law enforcement agencies had prior to the city’s 1997 handover. On Thursday, Taiwan’s Mainland Affairs Council said the island wanted to establish closer joint crime-fighting efforts with Hong Kong, including signing a mutual legal assistance agreement... The establishment of mutual legal assistance between Hong Kong and Taiwan would require Beijing’s authorisation, according to Simon Young, a law professor at the University of Hong Kong.

Young said he believed there were many reasons the central government would support such a formal arrangement, citing a criminal cooperation agreement between the mainland and Taiwan that was implemented in 2009 and had been successful.“I think it is in everyone’s interest to try to negotiate a workable cooperation framework between the mainland, Hong Kong, Macau and Taiwan,” he said.

But the legal scholar noted there could be some difficulties in working out a cooperation framework as Taiwan employs the death penalty while Hong Kong does not.

Albert Chen Hung-yee, another legal professor at HKU, was less optimistic. Chen said while it would be best for the city to establish an extradition arrangement with Taiwan, such a move would be unlikely. “Even between Hong Kong and the mainland, there is no formal extradition arrangement, so establishing one with Taiwan would be quite difficult,” he said. Click here to read full article.

Friday, April 15, 2016

On Backchat, we will talk about government's reactions to asylum seekers and refugees. The government yesterday put forward proposals to increase the punishments for snakeheads and others who smuggle migrants into Hong Kong from those countries such as India and Vietnam which are the main source of asylum seekers. But these proposals, and description of asylum seekers as “fake refugees” by some pro-establishment parties, have alarmed local human rights groups who say it is “fueling a climate of fear and hostility” that will affect not only the asylum seekers but also members of local ethnic minority groups, and risks undermining human rights and the rule of law in Hong Kong. So who is right? Does Hong Kong have a refugee problem? Or are we overreacting to a flow of migrants which is still modest by international standards? Guest panelists: Priscilla Leung, Legislator, Business and Professionals Alliance for Hong Kong, Fernando Cheung, Legislator, Labour Party, Kelley Loper, Associate Professor, Faculty of Law, University of Hong Kong, Law Yuk-kai, Director, Hong Kong Human Rights Monitor, Mark Daly, International Human Rights Lawyer. Click here to listen to the programme.

Backchat, RTHK Radio 3
12 April 2016
On Backchat, we will talk about Beijing's reactions towards Hong Kong Independence. Liaison office's new legal chief Wang Zhenmin suggested that people discussing independence in a large-scale setting were not only in breach of the Basic Law, but also the Crimes Ordinance and Societies Ordinance. What's your reaction to the statement? Is Beijing tightening its policy on Hong Kong? Is the common law and 'One Country Two Systems' under threats? Speakers: Lawrence Ma, Barrister, and Chairman, China-Australia Legal Exchange Foundation, Albert Chan, Legislator, People Power, Michael Davis, Professor, Faculty of Law, University of Hong Kong, Junius Ho, Practising Solicitor and Tuen Mun District Councillor. Click here to listen to the programme.

On 29 January 2016, the Court of First Instance handed down an important decision on the procedural and substantive aspects of competition law. Justice Godfrey Lam, sitting in the Court of First Instance, decided to quash the 2013 decision of the Communication Authority (“CA”) that Television Broadcasts Limited (“TVB”) had violated the competition provisions in the Broadcasting Ordinance, for which TVB was fined a sum of HK$900,000 and ordered to rectify its practices. The judge decided that the CA’s decision should be quashed for procedural unconstitutionality and, alternatively, part of the decision should be quashed for the disproportionate remedies ordered. The judge nonetheless upheld the CA’s competition law analysis of TVB’s practices.

The Competition Ordinance, which is Hong Kong’s first cross-sector competition legislation that came into full operation on 14 December 2015, has now replaced the competition provisions in the Broadcasting Ordinance. As the first competition case decided after the full commencement of the Competition Ordinance, the TVB decision is important and sheds light on how the Competition Tribunal (of which Justice Godfrey Lam is the President) and other courts may decide similar procedural issues, analyse competition law issues and order remedies under the new Ordinance... Click here to read the full article.

Abstract: Analyses the UK Supreme Court decision in Starbucks (HK) Ltd v British Sky Broadcasting Group Plc [2015] UKSC 31; [2015] 1 W.L.R. 2628. Argues that: (i) the Starbucks case represented a missed opportunity for the Supreme Court to develop the law further still by recognising that evidence of mere reputation in the UK, as opposed to goodwill due to the presence of local customers, can itself satisfy the first element of actionable passing-off, with reference to the development in Australia, Hong Kong and other common law jurisdictions; and (ii) a foreign claimant with mere reputation in the UK has at least two legitimate interests that should be protected under the law of passing-off: first, the claimant’s ability to use its name or mark as part of its future expansion of business into the UK market; and secondly, the claimant’s brand image developed through its supply of high quality products or services over the years. Click here to download the article.

An expert on equality laws and minority rights says the Equal Opportunities Commission’s proposals for a major overhaul to Hong Kong's anti-discrimination laws should go further to cover contentious issues. Puja Kapai, who is an Associate Law Professor at the University of Hong Kong, says while the proposals are very encouraging, there is room for compromise to offer protection to people like same-sex couples. She tells Jim Gould that the commission should take the lead and bring the various parties together to agree on issues that are opposed by some sectors of the community.

Most of the 30,000 Nepalese residents in HK are related to the heroic Gurkha soldiers who were in the British garrison here.

But in recent years, the Nepalese's poverty rate has skyrocketed as many of them are trapped in a vicious cycle of low education levels, low or semi-skilled work, juvenile crimes and drug abuse. Why has this happened? Is there a way out? Reporter: Billy Wong

Let’s be clear on what this new United Kingdom Supreme Court decision (R v Jogee) on joint criminal enterprise might mean for Hong Kong. You and I plan to rob a 7-Eleven. You carry a wooden stick, and I know you’ll use it if you need to. I stand outside the store to keep watch. To my surprise, I hear a gun fired and see you running out of the store, one hand with a fistful of cash and the other holding a handgun. I run too. The cashier died from your gun shot to the head.

Under the existing Hong Kong law, you would be guilty of murder, but I would be guilty of only robbery, as a secondary party, because it cannot be proven that I foresaw the use of the gun, a more lethal weapon than the stick. If our courts follow the UK decision, Jogee, I would be guilty of both robbery and manslaughter because I was party to an unlawful and dangerous enterprise that resulted in a person’s death. If it was proven that I intended that the cashier suffer really serious bodily harm by the stick, I would be guilty of murder. In this example, Jogee results in more serious criminal consequences for me than under the current law.

Take a second example. You and I plan to rob the 7-Eleven, but this time, you are carrying your usual pocket knife, and though you say you will only use it to frighten the cashier, I know of your short temper and violent tendencies. As I stand outside, I hear a scream and see you running out with the cash and pocket knife stained with blood. You killed the cashier with intention to cause really serious harm and will be done for murder.

Under the existing law, I will also be guilty of murder because I foresaw that you might use the knife to stab the cashier. If our courts follow Jogee, I would likely be guilty of manslaughter instead of murder because robbery of a 7-Eleven with a pocket knife is an unlawful and dangerous act – objectively carrying the risk of some harm to another – that resulted in death. By requiring proof of intention in place of foresight, Jogee narrows the net of criminal liability in this example.

These examples show that Jogee is not a ‘get out of jail’ card for those involved in serious crimes of violence. Manslaughter instead of murder is more likely to be the verdict if intention cannot be proven. Jogee also closes the exception based on an inability to foresee the use of a more lethal weapon. The case should find support with both defence lawyers and prosecutors.

To persuade the Court of Final Appeal to overrule itself will always require some effort. But where the reasons for extending the net of criminal liability of a common law offence have fallen away, the court would be justified to restore the law to its original form.

Saturday, April 9, 2016

The consultation period ended on 7 April 2016 for input by the public on the HK government's Biodiversity Strategy Action Plan. The Convention on Biological Diversity, which was extended to Hong Kong in 2011, requires the HK government to develop an action plan for HK promoting local biodiversity and reducing the territory's large ecological footprint. Three years ago, a HKU led study "A Review of Hong Kong's Wild Animal Protection Laws" (Whitfort, Cornish, Griffiths and Woodhouse, 2013) identified 15 areas of legislation in need of urgent amendment if HK is to comply with its obligations under the Convention. These included the need to:

create a “List of Hong Kong Species of Conservation Concern” which included fauna and flora at risk in the HKSAR, and which can be periodically updated and used to inform lists of protected species under all relevant Ordinances (including the Environmental Impact Assessment Ordinance).

provide legal protection to freshwater fishes, and marine fishes and invertebrates, which currently are excluded from protection under the Wild Animals Protection Ordinance because fish are not defined as "animals" under that law.

improve measures to manage invasive alien species which threaten local biodiversity.

increase controls for the possession of protected wild animals, and

provide protection for endangered plant species on private land.

It is also important to recognise that HK's obligations under the Convention require the government to ensure HK trade does not negatively impact on endangered species in other jurisdictions. In other words, there is a duty to enact law and policy that effectively combats wildlife crime. On 19 March the HKU Law Faculty hosted a seminar in conjunction with ADM Capital entitled: "Wildlife Crime- What more can Hong Kong do?" At that seminar John Sellar (ex CITES chief of enforcement) spoke about the pivotal role Hong Kong plays as the gateway to China in trade in endangered and vulnerable species. His Op Ed on the problem was featured in the SCMP on 7 April 2016.

In this year's policy address, the Chief Executive stated that government would explore the introduction of a legislative ban on trade in ivory and would consider enacting stricter measures to combat trade in endangered species. While a ban on ivory sales is an important and long overdue step for Hong Kong, it is clear is that current laws are not doing enough to deter trade in other endangered species and their derivatives, such as rhino horn, tortoises, shark fin, humphead wrasse, pangolins, sea horses and fish maw. The answer to the problem will not be as simple as raising the penalties for trade in endangered species under Cap 586. The courts are already only using about 10 per cent of their current sentencing powers to address the problem. What is needed is a new strategy for tackling the crime through enhanced enforcement. The derivatives of endangered species are often worth more on the black market than dangerous drugs yet the HK police currently have no role to play in the investigation and prosecution of the trade. The time has come for government to get serious with wildlife crime enforcement and apply the same white collar prosecution principles it uses to deter other forms of organised and serious crime. Wildlife crime has been repeatedly linked to money laundering and the drug trade and, in the UK and the USA, specialised police units and prosecutors are now tasked with the investigation and prosecution of wildlife crime. Internationally, Interpol has an environmental security unit dedicated to the detection and investigation of wildlife crime.

It is high time our government began treating wildlife crime as the serious criminal activity it is. Written by Amanda Whitfort.

Introduction (pp 1-24): The main purpose of this Special Issue is to introduce readers to some of the key developments now taking place in mediation as a form of dispute resolution in China, a society in which mediation has long been a central processual and ideological feature of its legal culture. Generally speaking, there is in the People’s Republic of China (‘PRC’) a number of different institutional contexts within which mediation is used for handling disputes: ‘people’s mediation’, which is primarily a form of local community dispute resolution, judicial mediation carried out by judges in and around the court, administrative mediation as conducted by officials and often focused on specific areas of governmental responsibility (as, for example, is the case with environment disputes), mediation in arbitral proceedings, and private mediation carried out without specific institutional support. Over the past fifteen years or so, in response to the rapid economic and social changes taking place in mainland China (including, inter alia, a declining importance of the local community) there have been attempts to institutionalize mediation, to resource it better, and to give it more legitimacy and legal force. In handling cases that come before the courts, judicial mediation continues to be seen as a particularly useful process, offering flexibility and effectiveness in dispute resolution. Under the current Xi Jinping government, the Chinese Communist Party’s (‘CCP’) concern with political stability and social harmony has intensified and judges, people’s mediators, arbitrators and others have to consider the social and political impact of what they do, even more so now than in the past...

In the course of legal development in contemporary China, mediation (tiaojie) has attracted wide domestic and international attention because not only it carries heavy traditional social and culture value of China as an ‘oriental experience’, but also because in recent years the process has been increasingly deployed as a means of extra-judicial control to deal with social conflicts and to support the political regime in China’s bumpy course toward a market economy and rule of law reform. Against this background and the promise made by the new leadership installed in 2012 to promote the country’s development under the rule of law this article critically examines the campaign to promote mediation in China in recent years and considers whether a new direction is emerging in the changed political environment. Following this Introduction, the first section highlights the campaign to systemize mediation as a legal mechanism in the political framework in China, particularly after 2008; the second and third sections review the debates on the political promotion of mediation and critically assesses the effectiveness of its implementation from judicial perspective; sections four and five look at some signs for a new direction and the difficult path ahead, and offer reflections...

Mediation, a popular mechanism for resolving disputes in Chinese society, is believed to be an important process for realizing the official goal of a harmonious society in China. The wide acceptance and adoption of mediation in daily life justifies a serious consideration of the ‘normalizing’ of mediation as a discipline in legal studies. The promotion of “grand mediation” (da tiaojie) and the unification and consolidation of the system of mediatory justice in the People’s Republic of China (‘PRC’) provide rich theoretical potential for the study of a number of substantive aspects of mediation. The highly practical nature of mediation requires us to consider its institutionalization and professionalization. As such, skill-based teaching and study of the practical dimensions of this process constitute an important part of mediation as a discipline, supplementing theoretical analysis of mediation...

"When Local Meets International: Mediation Combined with Arbitration in China and its Prospective Reform in a Comparative Context" (pp 84-105)

In line with its remarkable economic growth over the past few decades, there has been a dramatic increase in the number of commercial disputes in the People’s Republic of China (hereinafter referred to as ‘China’) in recent years. A significant portion of the disputes are resolved by alternative dispute resolution. The leading arbitration institution in China, the China International Economic and Trade Arbitration Commission (CIETAC), reported that the total number of cases which it accepted in the year 2014 was 1610, more than a double the caseload when compared to the year 2000. The emergent need to resolve disputes in a more efficient manner, coupled with the long-standing tradition of mediation, has created the opportunity for med-arb practice to thrive. Currently, approximately 20% to 30% of the caseload of CIETAC is resolved by med-arb...

Though China has experienced multiple and severe disasters since ancient times, its approaches to addressing mass claims issues through mediation by courts and grassroots entities is undergoing a process of reform and change. The selection of recent disasters, whether natural or human-induced, include the Severe Acute Respiratory Syndrome epidemic (‘the SARS Incident’), the earthquake that struck Wenchuan County, Sichuan Province in China in 2008 (‘the Wenchuan Earthquake’) and the Sanlu contaminated milk powder incident (‘the Sanlu Milk Contamination Incident’). The mass claims arising out of these disasters illustrate the continued preference for settling wide-scale claims outside of court. This settlement tendency alongside continued attention to strengthening the rule of law in China, naturally gives rise to questions regarding how such processes might simultaneously advance due process, transparency and avenues for appeal. Through examining China’s mediated response to disaster events experienced in recent years, this essay aims to provide a brief overview of China’s recent approaches to post-disaster governance, an evaluation of the country’s achievements to date, an analysis of challenges ahead and some suggestions for improving the existing approaches and mechanisms drawing on existing lessons learned...

Description: The current global financial system may not withstand the next global financial crisis. In order to promote the resilience and stability of our global financial system against future shocks and crises, a fundamental reconceptualisation of financial regulation is necessary. This reconceptualisation must begin with a deep understanding of how today's financial markets, regulatory initiatives and laws operate and interact at the global level. This book undertakes a comprehensive analysis of such diverse areas as regulation of financial stability, modes of supply of financial services, market infrastructure, fractional reserve banking, modes of production of global regulatory standards and of the pressing need to reform financial sector ethics and culture. Based on this analysis, Reconceptualising Global Finance and its Regulation proposes realistic reform initiatives, which will be of primary interest to regulatory and banking legal practitioners, policy makers, scholars, research students and think tanks.

Proposes new conceptual approaches to global financial regulation

Brings together leading thinkers in law and finance from Europe, North America and Asia

Reviews the post-2008 regulatory initiatives and offers novel solutions to issues from financial stability to ethics and culture

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Monday, April 4, 2016

Gill Singh has worked in the insurance industry since the mid 1970s. In late 2006, he met his former colleague and friend, Mr Wong, to discuss future opportunities. Wong was the Chief Executive Officer of Dah Sing, an insurance company. Eventually Singh was appointed a senior district manager of Dah Sing in January 2007. However, things did not go as well as expected and he was terminated in August the same year.

The insurance company then sued Singh in the District Court to try to recover back a $150,000 sign-on fee and two monthly allowances of $50,000 each. The contract which Singh signed stated that the sign-on fee was repayable in full if Singh was terminated within three years of his appointment. However it did not say anything about recovering monthly allowances that were paid. With the assistance of legal aid, Singh counterclaimed for losses he suffered as a result of the company's failure to report his termination to the Insurance Agents Registration Board (IARB); he could not work for another insurance company as a technical representative or insurance agent until such termination had been registered. He also counterclaimed for losses arising from the company's failure to report his continuing professional development (CPD) certificate to the IARB, thereby resulting in his suspension from registration as an insurance agent for three months. The company argued that it was not in breach of any duty owed to Singh and there was no right of action under the law for any of these breaches.

On 18 May 2012, the District Court ruled in Singh's favour and held that the two months of paid monthly allowances were not recoverable and that Singh was entitled to damages for the company's breaches of duty in respect of the non-reporting to IARB of Singh's termination and his CPD certificate. But the company appealed to the Court of Appeal, and on 23 December 2013 the Court of Appeal reversed the District Court's decision. The Court of Appeal found that the legislation did not create a private right of action for the alleged breaches and the company did not owe a duty of care to Singh. It also found that even if there was a breach, Singh did not suffer any losses. After being advised by senior counsel that there was no merit in an appeal, it seemed like this was the end of the road for Singh.

It was at this point that the HKU Clinical Legal Education Centre became involved when Singh made an appointment to seek legal advice from the Centre. After an initial meeting in January 2014 with the two law students assigned to the case, Phoebe Suen (then Gov't & Laws 5) and Joel Lee (then LLB 3), the two students diligently researched and prepared a 17-page memo pointing out the likely errors of the Court of Appeal for the advising lawyer, Eric Cheung, principal lecturer and director of clinical legal education. Cheung read the memo and immediately thought there was a case to take up to the Court of Final Appeal (CFA). To confirm his beliefs, he sought the advice of the tort law experts in the Faculty of Law. Eventually, after advising the client and obtaining his instructions, Cheung wrote to the Legal Aid Department and convinced them to change their decision and to fund the appeal to the apex court. At this stage, Audrey Eu SC leading Kelvin Leung, took over the case but with the continued assistance of various law students up until the case was argued before the CFA in February 2016.

On 31 March 2016, the CFA unanimously allowed Singh's appeal and restored the District Court's decision (Dah Sing Insurance Services Limited v Gill Gurbux Singh, FACV18/2015). Writing for the Court, Mr Justice Tang held that the company had a common law duty of care to make timely reports of termination and CPD certificates to the IARB so as to avoid foreseeable loss to representatives and agents like Singh. The duties were found in the Code of Practice for the Administration of Insurance Agents. The decision is an important precedent on the tort liability of insurance companies to their agents and representatives in respect of duties under the Code of Practice.

This was not the first time for a client of the HKU Clinical Legal Education Centre to win a case in the CFA. In October 2015, the CFA allowed the appeal in HKSAR v Law Yat Ting [2015] HKCFA 71, a case concerned with whether closing a car door constituted tampering with a motor vehicle. The injustice had been so obvious that the Department of Justice conceded the appeal and the CFA decided the matter without an oral hearing.

Sunday, April 3, 2016

On 8 March 2016, Dr. Yahong Li presented “User Generated Content (UGC) from International and Chinese Perspective” in the Joint Research Workshop on “Prosumerism and IP” at the Vienna University of Economics and Business. In her presentation, she introduced the characteristics and economic value of UGC, the current international trend of UGC protection, and the development, models, and features of UGC in China. She then discussed the relationship between UGC and copyright, and argued that UGC deserves better protection as it has created important economic values while being unfairly exploited by the powerful social media and Internet giants. She advocates giving a proper legal status to UGC, not only fair use defense.

The joint workshop is a part of the joint research project “Prosumerism and IP” which is undertaken by the IT/IP-Law Group of Vienna University of Economics and Business, and sponsored by the Austrian government under its EURASIA PACIFIC UNINET funding scheme, to which Dr. Yahong Li was invited as a co-investigator. This first joint workshop invited about 15 speakers, discussing the relationship between prosumerism and 3D-printing, moral rights and UGC. The second joint workshop is planned to be held at HKU Faculty of Law on 6 May 2016, and will cover similar topics.

Saturday, April 2, 2016

Hong Kong National Party, the new kid on the radical block, is igniting debate on whether an extreme party that rejects the Basic Law and wants to turn Hong Kong into an independent republic can exist legally.

While it is not the first group to advocate independence, it is at the extreme end of the localism movement as it has not only refused to recognise the Basic Law, the city’s mini-constitution, it has pledged to use “whatever means available” for Hong Kong to break away from the mainland.

Can such a party exist in Hong Kong, a special administrative region of China, and can a Hong Kong citizen advocate independence without facing legal repercussions are among the questions that have sparked divided views.

While some argued advocating independence without taking any action was part of freedom of speech, last night Beijing’s liaison office chief Zhang Xiaoming disagreed with such a stance. In an interview with Phoenix TV, he said the founding of the new party “went beyond the realm of the freedom of expression ... and must not be tolerated”...

University of Hong Kong principal law lecturer Eric Cheung Tat-ming warned that the ordinance must not be interpreted without taking into account various other legislation, including the Basic Law and the Hong Kong Bill of Rights, that protect freedoms. “Those provisions in the Crimes Ordinance were outdated ... and their legality and constitutionality were in question,” Cheung told the Post.

Former HKU law dean Johannes Chan Man-mun also said it was impossible to prosecute someone for advocating independence without action.

Without further elaborating, HKU law professor Albert Chen Hung-yee said the provision about sedition “might not be applicable to the current situation”, but lawyer Maggie Chan Man-ki disagreed and said: “It is irresponsible to rule out the possibility of any legal liability ... because even the Bill of Rights says the exercise of [civic liberties] should not affect national security.”

Former security minister Regina Ip Lau Suk-yee warned that while words did not constitute a crime, the party could be prosecuted when it organised activities to achieve its goals.

While the Societies Ordinance is another law that could deal with acts that threaten national security, it is unlikely that the new party has applied to be registered as one, as most political groups are registered as companies.

The party’s spokesman had said they had been advised by a third party that they might not be able to register under the Companies Registry. The registry told the Post it would not comment on individual cases.

HKU law professor Simon Young told the Post that the party’s company registration depended on “whether ... seeking the independence of Hong Kong [peacefully] can be said to be not a lawful purpose”.

He also said that under the Societies Ordinance, “it is hard to see how prohibiting the group would be necessary for national security ... [if] the party only seeks to discuss the possibility of independence and to achieve” it by peaceful means... Click here to read the full article.

A former Occupy Central activist has launched Hong Kong National Party to push for independence.

However, that's akin to throwing a pebble in the water - after creating a few ripples, the stone sinks. Independence can never be a serious issue for people here.

Obviously, some radicals are doing everything they can to anger Beijing ahead of the Legislative Council election in September, knowing that the communists are extraordinarily sensitive about the term "independence."

However, Beijing's reaction has been surprisingly restrained. Instead, Xinhua News Agency spared just about 200 characters to denounce the move as harmful to national sovereignty and security...

University of Hong Kong law professor Johannes Chan Man-mun said the SAR enjoys freedom of speech, and nobody should be prosecuted simply for speaking their minds - unless one crosses the line to commit illegal acts, including the use of force... Click here to read full article.

Talk of independence for Hong Kong could bring forward legislation to enact Article 23, the security law targeting subversion and sedition which was abandoned in the face of mass opposition in 2003, University of Hong Kong law Professor Eric Cheung Tat-ming said on Thursday. He added that he was worried that such discussions could touch a nerve in the central government.

Regarding the newly-established, pro-independence Hong Kong National Party, Cheung said that their stance may not conform to the Constitution of China and the Basic Law, but the suggestion that it severely endangers the country is an exaggeration, according to a report by RTHK. Cheung said: “It’s the same as you suggesting that ‘defeat the Communist Party’ is against the Constitution of China, but this does not mean that people who voiced this kind of opinion have broken the law. The Basic Law and Bill of Rights protect freedom of speech.”... Click here to read the full article.

Law Professor Simon Young from the University of Hong Kong says simply discussing independence for Hong Kong would not violate the Basic Law. He says the police have powers to deal with people who undermine national security, public order or public safety. But he tells Jim Gould that if the independence-leaning Hong Kong National Party pursues its objectives through lawful means, it is quite questionable whether those powers could be used against it. Click here to listen.